CALL NOW FOR CONSULTATION

NEWS/BLOG

Best Interest Finding Required When Parent Moving

A California Court of Appeals has ruled that a Trial Court erred by issuing an order denying a Mother’s motion to relocate with the parties’ child and maintaining the custody status quo where its order was based on the premise that Mother would not move without the child and it failed to determine what order would be in the child’s best interests if the move took place. In the case of Jacob A. v. C.H., Mother and Father, who were never married, were parents of their child who had Type I juvenile diabetes. When their relationship ended in December of 2007, Mother took the child and moved to Washington. She claimed that the move was prompted by her desire to get away from "an unhealthy environment," but Father believed she just wanted "to deny him his parental rights."

Whatever the reason, the move did not last long. Mother and child returned to California in January of 2008. Father then petitioned for custody of child. Mother responded with a motion for permission to move with the child to Washington. After Mother and Father participated in mediation, the mediator recommended that Trial Court deny Mother’s request to move, and award Mother primary custody of the child if she stayed in California. After the hearing, Trial Court granted Mother and Father joint legal and physical custody of the child and denied Mother’s motion. After two more mediation sessions, the mediator opined that allowing the child to move to Washington would be detrimental to child because the child would be likely to bond more closely to Mother, the child needed a relationship with both parents, and Father could not afford travel expenses to visit with the child. When mediator presented Mother and Father with a parenting plan that gave them essentially equal time, but precluded Mother from moving, Mother and Father agreed to it.

In November 2008, Mother again sought to move to Washington with the child. Father opposed the move and asked for more specific holiday schedule. After further mediation, Mother and Father adopted new holiday schedule, but did not reach an agreement on the move.

In August of 2009, Mother filed another request to move with the child to Washington and to modify parenting schedule. In a supporting declaration, Mother stated that she had tried and failed to find a job where she was living, but had one waiting for her in Washington, where she would also have support from her extended family, to whom the child had strong attachment. Mother claimed that Father did not know how to deal with the child’s diabetes, and had a history of driving with the child on suspended license, failing to put the child in a car seat, failing to make required changes to the child’s insulin pump infusion site, and a D.U.I. (the child was not present).

Mother and Father met with a court-appointed mediation, who recommended that Trial Court appoint counsel for the child, who would determine the child’s best interests regarding the move. On October 16, 2009, Trial Court appointed counsel to represent the child. That attorney later submitted a report, finding that Mother and Father were entitled to a full evidentiary hearing regarding the move; the child should continue living in El Dorado County until the hearing took place; Trial Court should fashion a more stable parenting plan; and Trial Court should hold a review hearing if Mother intends to move without the child.

At trial in March of 2010, Mother testified in detail about her job offers, financial support and benefits, and family support she would receive in Washington. She proposed that Father be allowed to visit the child in Washington two times per month, have nightly phone calls, e-mails with pictures, and Web cam visits, as well as visits on "as little as 24-hour notice." If Trial Court declined to let the child move, Mother proposed that the child be with her "whenever she was not in school" and have regular Web cam visits, nightly phone calls, and visits on similarly short notice. Mother explained that she had first-hand experience with Type 1 diabetes because she had the disease. She recognized that the child and Father had loving relationship, but promised not to shut Father out of the child’s life if Trial Court permitted the child to move. Father told Trial Court that the child’s moving would mean that he had little or no contact with the child because he could not afford the airfare to Seattle, and he objected to sending the child alone because of her diabetes. Father claimed that living with Mother and the child had given him extensive experience with the disease and the capacity to care for the child. Moreover, his girlfriend had training that enabled her to care for the child’s medical needs and his parents were capable of helping out. The Mediator testified that Father’s inability to fund regular trips to Washington was "one of her greatest concerns" and that the child’s move would have decidedly detrimental effect on the child’s relationship with Father, as it would with Mother if the child stayed behind.

In response to questioning, the Mediator told the child’s attorney that she "had an impression" that Mother would not move to Washington without the child. The Mediator also said that she had reservations about Father’s ability to care for the child, his tardy training in diabetes issues, his passing off the child’s infusion-site problem to his girlfriend, and his failure to follow through when Mother sought to inform him about the issues in the child’s daily life.

The child’s attorney opposed the move, citing concern for father-daughter relationship, as well as the child’s relationships with extended family, friends, and medical personnel. The attorney described both parties as good parents, but gave a slight edge to Mother as "more attentive to [the child’s] needs." However, the attorney said he did not believe that the move was in the child’s best interests or that Mother was going to move if Trial Court did not approve it.

Trial Court found that Mother did not have bad faith motive for moving, but that the move would not be in the child’s best interests. When the attorney asked what Trial Court’s order would be if Mother moved without the child, Trial Court responded that it "would cross that bridge when we come to it." In a statement of decision issued March 23, 2010, Trial Court found that uprooting the child from friends, family, and familiar surroundings and disrupting existing parenting plan, which provided for "frequent interaction with both parents," would not be in the child’s best interests and denied Mother’s request.

Claiming that Trial Court erred by keeping in place a parenting plan that could not work if she moved, Mother appealed, and a California Court of Appeals has now reversed the Trial Court’s decision and has remanded the case back to Trial Court for re-hearing. The Appellate Court has ruled that (1) when a parent in joint custody parenting plan seeks to move which makes that plan unworkable, Trial Court must consider child’s best interests de novo and arrive at a new plan; (2) Trial Court erred by maintaining the status-quo based on the assumption that Mother would not move without the child; (3) Trial Court has no authority to prevent Mother from moving or to coerce her into staying by continuing the current parenting plan; (4) Trial Court should have assumed that Mother was moving and determined whether it was in the child’s best interests to go with Mother and visit Father or to stay behind with Father and visit Mother; (5) Trial Court’s error had its beginnings in the assumptions made by the Mediator and the child’s Attorney that Mother would not move without the child, and their failure to make recommendations based on Mother’s move; and (6) on remand, Trial Court must bear in mind that assumptions about whether Mother would actually move are "legally irrelevant" and that it lacks the authority to make an order that attempts to coerce Mother into not moving. The Appellate Court reversed Trial Court’s order and remanded the case for a new determination of custody and visitation based on Mother’s proposed move.